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Further Reading

Later this month, a North Carolina high school student will appear in a state court and face five child pornography-related charges for engaging in consensual sexting with his girlfriend.

What’s strange is that of the five charges he faces, four of them are for taking and possessing nude photos of himself on his own phone—the final charge is for possessing one nude photo his girlfriend took for him. There is no evidence of coercion or further distribution of the images anywhere beyond the two teenagers’ phones.

Similarly, the young woman was originally charged with two counts of sexual exploitation of a minor—but was listed on her warrant for arrest as both perpetrator and victim. The case illustrates a bizarre legal quandry that has resulted in state law being far behind technology and unable to distinguish between predatory child pornography and innocent (if ill-advised) behavior of teenagers.

On July 21, 2015, the young woman took a plea deal whereby the felony charges were dropped, but she pleaded guilty to a misdemeanor charge, which will be expunged after she completes a year of probation. Over the next 11 months, she is not allowed to possess a cell phone, among other restrictions.

Neither of the Fayetteville students nor their lawyers immediately responded to Ars’ requests for comment.

Ars is withholding the names of both individuals as they are minors, despite the fact that they have been published elsewhere, including the Fayetteville Observer, which broke the story earlier this week.

The two teens have to face the charges as adults.

"You must keep in mind that juvenile court jurisdiction in North Carolina ends at age 16, so 16- and 17-year-olds, as in the Fayetteville case, will automatically be charged in adult criminal court with no option for adjudication in delinquency court," Tamar Birckhead, a law professor at the University of North Carolina, told Ars. "Another irony here is that these two teens could have legally had sex with each other in North Carolina, yet they are charged with felonies for texting sexually explicit photos of themselves to each other."

A 2014 Drexel University survey found that while the majority of teens sext with each other, an even higher percentage were unaware that engaging in such behavior could be prosecuted as child pornography.

The National Conference of State Legislatures began tracking sexting legislation in 2009 and reported that at least 20 states and Guam have enacted bills to address youth sexting.

Looking in dark corners

Further Reading

While these laws may have been originally written to cover pre-digital child pornography, local law enforcement now says its goal is to also prevent future possible instances of revenge porn or sextortion.

"What we are seeing now is that people don't understand—it's a big deal when the young lady and the young man apply for a job [and these photos are online]," Sgt. Sean Swain, a Cumberland County Sheriff’s Office (CCSO) spokesman, told Ars.

"This technology and this problem that we’re having with this case, we don't know where it’s going to go in five years when they apply for college," he said. "We don't know where these pictures are going to go. We’re more or less saving the kids from themselves because they’re not seeing what’s going to come down the road."

Swain added that the male teen allowed law enforcement to search his phone as part of an ongoing investigation into a separate and unrelated alleged statutory rape that was reported to authorities in October 2014.

"He’s an ‘involved other’ in a statutory rape case," Swain continued. "He wasn’t charged with anything in the other case; that’s what we’re investigating. His phone was thought to have involvement or evidence from that case. He’s not a suspect, and he wasn’t a victim and he may not have been there to witness it, but he may have evidence on his phone. Until his case is adjudicated, we will continue to keep his phone."

The sergeant did not know whether any evidence of the rape had been found on the phone.

Swain also admitted that such cases are rare, although on Wednesday the CCSO announced that it had arrested another 17-year-old student who faces 23 charges of sexual exploitation of a minor in yet another unrelated case.

Prosecutorial discretion is advised

Further Reading

Legal experts remain mystified as to why the CCSO brought this case forward to begin with.

"I’m deeply troubled by the fact that this case was even charged," Damon Chetson, a North Carolina defense attorney who does not represent either teen, told Ars.

"Even if these charges are ultimately dismissed, these teenagers’ lives have been forever altered for the worse. Imagine years from now when they apply to college, or for a job, and someone vetting their application does a Google search," he said. "Their names will forever be linked to this incident. It is ridiculous that we are criminalizing this immature teenage behavior. The notion that prosecutors just enforce the law is absurd. Every day prosecutors make decisions about which crimes to prosecute because of limited resources and proper prosecutorial discretion. This incident was a perfect opportunity for the parents of each of teens to sit down and have a conversation with their children about appropriate behavior. It is not appropriate for it to be in a criminal court."

David Ball, a law professor at Santa Clara University in California agreed that it seemed a bit strange to have law enforcement bring forward a host of charges relating to photos that were essentially discovered by accident.

"It’s a canon of criminal law, you can’t be an accomplice to an act that has you as the victim—the problem does seem to be that she is charged with exploiting herself," he said. "Maybe it’s different if she posts to Instagram or Facebook or something like that? How would we feel if someone had taken a polaroid and sent it only to the recipient? To what extent does the technology change the analysis? I have a hard time figuring out what the model of harm is. This seems like a troubling example of overreaching, and this is not to minimize the real harms that child porn causes."

Tamar Birckhead, the North Carolina professor, added that the legal system is generally ill-equipped to deal with sexting but that there should be a revision of state and federal laws.

"Cases like these inevitably raise the issue of our society’s reluctance to accept that teenagers are sexual beings and that hard and fast bright line rules fail to recognize this reality," she said. "Also, there should probably be a statutory exception for teens who are close in age who sext each other consensually, just as there is one for teens close in age who have consensual sex."

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar